The Senate is considering a bill by Senator Rockefeller (D-WV) to update the FISA legislation to cede more surveillance authority to the US Government. The Rockefeller bill includes broad provisions that would retroactively absolve the telecoms of any responsibility for alleged violations of law. The telecommunications industry fully cooperated with Bush administration requests to spy on Americans beyond authorizations granted by existing FISA laws to do so.
Hundreds of millions of phone calls, emails, chat postings and text messages have been captured in databases by the telecom giants.
Senator Feinstein introduced an amendment that would allow the dismissal of any telecom civil liability only if the telecoms could meet the certain criteria:
The dismissal of a covered civil action under paragraph (1) shall proceed only if, after review, the Foreign Intelligence Surveillance Court determines that--
(i) the written request or directive from the Attorney General or the head of an element of the intelligence community (or the deputy of such person) to the electronic communication service provider under paragraph (1)(A)(ii) complied with section 2511(2)(a)(ii)(B) of title 18, United States Code;
(ii) the assistance alleged to have been provided was undertaken in good faith by the electronic communication service provider pursuant to a demonstrable reason to believe that compliance with the written request or directive under paragraph (1)(A)(ii) was permitted by law; or
(iii) the electronic communication service provider did not provide the alleged assistance.
With the support of a number of Democrats, Feinstein's amendment was defeated. This effectively immunizes the telecoms from future civil liability in spite of the fact that they clearly broke the law.
The vote against the amendment was: Yeas - 41, Nays - 57.
Obama voted for the amendment; Clinton did not vote.
Democrats voting with the Republicans included:
Carper (D-DE), Dodd (D-CT), Inouye (D-HI), Johnson (D-SD), Landrieu (D-LA), Menendez (D-NJ), Nelson (D-NE), Pryor (D-AR), and Rockefeller (D-WV).
Republicans voting with the Democrats included:
Specter (R-PA).
